On June 02, 2010 a Motion-Secondary was filed involving a dispute between Hagen, Laurance, and 3M Company, 4520 Corp., Inc.,, A & A Mechanical Contractors Inc., A & A Sheet Metal, Aberthaw Construction Company, Acco Engineered Systems, Inc., A.E. Knowles Corporation, Aire Sheet Metal Inc., Air Systems Mechanical Contractor, A.J. Peters & Son, Aladdin Heating Corporation, Albay Construction Company, Allied Painters, Inc., Allied Sprinkler Company, Inc., Anderson, Rowe & Buckley, Inc., Applied Support Systems, Inc., A.R.B. Mechanical, Armaral Plumbing, Associated Insulation Of California, Atlas Heating And Ventilating Company, Ltd., Bailey Plumbing, Heating & Sheet Metal, Barnes Construction Co., Bay Cities Crane And Rigging, Inc., Bayer Cropscience Inc., Bayer Cropscience, Inc.,, B H P Minerals International, Inc., Bigge Crane And Rigging Co., Bragg Investment Company, Inc., B.T. Mancini Co., Inc., Buttner Corp., Cahill Contractors, Inc., Carrier Corporation, Cbs Corporation, A Delaware Corporation, Fka, Cbs Corporation (F K A Viacom Inc., F K A, C.C. Moore & Co. Engineers, Certainteed Corporation, Chevron U.S.A. Inc., Chicago Bridge & Iron Company, Chicago Bridge & Iron Company,, Cleaver-Brooks, Inc., Coastal West Ventures, Inc., Commair Mechanical Services, Conocophillips Company, Consolidated Insulation, Inc., Cooper Brothers, Inc., Corey Contractors, Cosco Fire Protection, Inc., Coscol Petroleum Corporation, Coscol Petroleum Corporation Erroneously Named And, Crane Co., Crowley Plumbing, Crown Cork & Seal Company, Inc., C & R Plastering, Inc., Cupertino Electric, Inc., Dana Companies, Llc, Devcon Construction, Inc., Dillingham Construction, N.A., Inc., Does 1-8500, Domco Products Texas Inc. Erroneously Sued, Domco Products Texas, L.P., Dome Construction Corporation, Douglass Insulation Company, Inc., D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Early Engineering Corporation, Incorporated, East Bay Sheet Metal Works, East Bay Sheet Metal Works, A Dissolved Corp., E.C. Braun Company, Inc., Emerick Sheet Metal Co., Emil J. Weber Electric Co., E. Mitchell, Inc., Enterprise Plumbing, Inc., Erwin Mechanical Inc., Ex- Fm, Inc. (Fka Fischbach And Moore Electric,, Exxon Mobil Corporation, Faye Plumbing, Fdcc California, Inc., Finzel Plumbing Company, Fischbach And Moore, Incorporated, Nka Ex-Fm, Inc., Fluor Corporation, Foley-Pmi, Inc., Foster Wheeler Llc, Foster Wheeler Llc (Fka Foster Wheeler, F.P. Lathrop Construction Company, F.P. Lathrop Construction Company,, Frank Bonetti Plumbing, Inc., Frederick Meiswinkel, Inc., F.W. Spencer & Son, Inc., Garlock Sealing Technologies, Llc, General Cable Corporation, General Electric Company, George F. Schuler, Inc., George M Robinson & Co., George Townsend & Associates, George Wilson Company, Inc., Georgia-Pacific Corporation, Georgia-Pacific Llc, Giampolini & Co., Golden Gate Drywall, Inc., Granite Rock Company, Grinnell Corporation, Grinnell Llc,, Haas And Haynie Corporation, Haas & Haynie Corporation, Hamilton Materials, Inc., Hansen Plumbing And Heating, Hanson Permanente Cement, Inc. Formerly Known As, Harry Lee Plumbing & Heating, H.B. Fuller Company, H & C Investment Associates, Inc., Hensel Phelps Construction Co, Hensel Phelps Construction Co., Herrick Iron Works, Honeywell International, Inc., Honeywell International Inc., Fka Alliedsignal,, Hopeman Brothers, Inc., H.T.R. Enterprises, Inc., Ingersoll-Rand Company, Jacobs Constructors, Inc., James A. Nelson Co., Inc., James Nelson, Johnson Controls, Inc., J.R. Simplot Company, J.T. Thorpe, Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, Inc., Kaiser Gypsum Company, Inc., Kelly-Moore Paint Company, Inc., Kentile Floors, Inc., Kent M. Lim & Company, Inc., Kinetic Systems, Inc., Kramer Acoustics, Laub Sheet Metal Works, Leonard Construction Company, Lewis Air & Refrigeration, L.J. Kruse Company, Macarthur Company, Madlem Mechanical, Inc., Marcal Associates, Ltd., Marconi Plastering Company, Inc., Marina Heating & Air Conditioning, Marina Plumbing Company, Mauch Sheet Metal, Mayta & Jensen, Mcguire & Hester Corporation, Mckeon Construction, Mcmillan Brothers Electric, Inc., Metropolitan Life Insurance Company, Monterey Mechanical Company, Norcal Scaffolding, N. P. I. Corporation, N.V. Heathorn, Inc., Oakfabco, Inc., Ocean Shore Iron Works, O.C. Mcdonald Co., Inc., O H I Company, Inc., Oscar E. Erickson, Inc., Owens-Illinois, Inc., Owens Mckeon Construction, Pacific Coast Builders, Pacific Gas & Electric Company, Pacific Mechanical Corporation, Parker-Hannifin Corporation, Parsons Infrastructure & Technology Group Inc., Peerless Stucco Co., Perini Corporation, Perini Land And Development Company, Peter Kiewit Sons, Inc., Peter Lim Construction, Pierce Enterprises, Pierce Lathing Company Dba Pierce Enterprises, Power Refrigeration Company, Powers Process Controls, Quality Air Conditioning, Inc., Quintec Industries, Inc., Raphael Company, Raymond Interior Systems-North, Ray Oil Burner Co., A Dissolved Corporation,, Ray Oil Burner Company, Inc., Republic Supply Company, Rmc Pacific Materials, Inc., Robertshaw Controls Company, Rodoni Becker, Rosendahl Corporation, Rountree Plumbing & Heating Inc., Rudolph And Sletten, Inc., Santa Fe Braun, Inc. As Successor-In-Interest To, Schneider Electric Usa, Inc. (Fka Square D, Scott Co. Of California, Scott Norman Mechanical Company, Scott Technologies, Inc., Sequoia Ventures Inc., S F L, Inc., Shell Oil Company, Sierra Pacific Industries, S.J. Amoroso Construction Co., Inc., Stanford Plumbing, Stolte Inc., Sugden Engineering Co., Swinerton Builders, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The Jack Dymond Company, The Linford Company, Therma Corporation, Therma Mechanical, Thermon Manufacturing Co., Thomas Air & Refrigeration Inc., Thomas Dee Engineering Company, Timec Company, Inc., Tosco Corporation, Tosco Corporation Erroneously Sued And Served As, Trane U.S., Inc., Erroneously Sued As Trane U.S.,, Trane Us, Inc. Fka American Standard, Inc., Turner Construction Company, Tutor-Saliba Corporation, Union Oil Company Of California, University Mechanical And Engineering Contractors,, Valley Sheet Metal, Van-Mulder Sheet Metal, Inc., Vogel & Associates, Walnut Creek Sheet Metal, Furnace & Air, Washington Group International, Inc., Western Allied Corporation, Western Asbestos Company, Western Insulation, Inc., Western Macarthur Company, Western Plumbing & Heating Co., Inc., W.G. Thompson, Inc., Wheatley-Jacobsen, Inc., Williams & Burrows, Inc., Wilson Construction Company, W.L. Hickey Sons, Inc., Wright Schuchart Harbor, Wright Schuchart Harbor Company, Yamas Controls Group Inc., Zurn Industries, Llc, for ASBESTOS in the District Court of San Francisco County.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
LLP KNOX RICKSEN 27 28 Thomas E. Fraysse — State Bar No. 104436 Kenneth J. McCarthy — State Bar No. 120875 David F. Zucca ~ State Bar No. 154385 ELECTRONICALLY Reid M., Miller — State Bar No. 255538 KNOX RICKSEN LLP s F I L ED . 1300 Clay Street, Suite 500 County of San Francisco Oakland, California 94612-1427 G Telephone: (510) 285-2300 AUG 24 2010 Clerk of the Court BY: VANESSA WU Deputy Clerk Facsimile: (510) 285-2505 Attorneys for Defendant RMC PACIFIC MATERIALS, INC. SUPERIOR COURT OF CALIFORNIA - COUNTY OF SAN FRANCISCO. LAURENCE HAGEN, Case No. CGC-10-275582 Plaintiffs, RMC PACIFIC MATERIALS, INC.’S OBJECTIONS TO PLAINTIFFS’ v. OFFER TO COMPROMISE PURSUANT TO C.C.P. § 998 ASBESTOS DEFENDANTS (BéP), et al., Defendants. / Defendant RMC PACIFIC MATERIALS, INC. (“defendant”) hereby objects to plaintiff’s Offer to Compromise pursuant to California Code of Civil Procedure section 998 served on August 17, 2010, in the above-captioned matter on the grounds that the offer is premature, not made in good faith, and therefore invalid. Offers made under California Code of Civil Procedure section 998 are subject to a good faith requirement. (Barba v. Perez (2008) 166 Cal.App.4th 444, 450-451 [82 Cal. Rptr.3d 715] (court can determine good faith of offer made before answer is filed); Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 698 [241 Cal.Rptr. 108 ].) An offer that is not made in good faith is unreasonable and thus invalid under section 998. (d. at 698-699.) Thus, if a party makes an unreasonable settlement offer that is rejected, even if the offeree fails to obtain a more favorable judgment, the offeror is barred from claiming costs from the offeree under California Code of Civil Procedure section 998. (See Elrod y. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, se RMC PACIFIC MATERIALS, INC.’S OBJECTIONS TO PLAINTIFFS’ OFFER TO COMPROMISE PURSUANT TOC.C.P. § 998LLP KNOX RICKSEN 27 28 698-699 [241 Cal.Rptr. 108].) The reasonableness of a settlement offer is evaluated in light of the circumstances existing at the time the offer is made and is a matter left to the discretion of the trial court. (Elred v. Oregon Cummins Diesel, Inc., supra, 195 Cal.App.3d at 699-700.) Two objective tests must be satisfied to determine whether an offer is reasonable. (Elrod v. Oregon Cummins Diesel, Inc., supra, 195 Cal_App.3d at 699.) The first test is premised on information that was known or reasonably should have been known by the offeror. (/bid.) The court evaluates whether, based on such information, the offeror objectively knew or should have known that his or her settlement offer was reasonable. Uhid.) The second test is premised on information known, or that should have been known, by the offeree. (/bid.) There, the court will determine whether or not the offeree knew or should have known the information on which the offeror’s settlement offer was made. (fbid.) Additionally, if an offeror makes a section 998 offer knowing the offeree lacks the information necessary to evaluate the offer, the offeror has not made the offer in good faith for purposes of section 998. (/d. at 700.) An offer that is not made in good faith is invalid under section 998. (/d. at 698-699.) In the present action, defendant RMC Pacific Materials, Inc. answered plaintiff's complaint on August [3, 2010, only four (4) days before plaintiff served his Offer to Compromise. Thus, defendant RMC Pacific Materials, Inc. has not had the opportunity to propound written discovery, depose the plaintiff, obtain any of plaintiff's medical records, or obtain any of plaintiff's employment records. Moreover, plaintiff has not disclosed any product identification witnesses or documents that may identify conduct by RMC Pacific Materials Inc. which contributed to the plaintiff's alleged asbestos exposure. Lastly, plaintiff has yet to serve his responses to General Order Interrogatories, Set Two. In short, defendant RMC Pacific Materials Inc. has none of the information on which plaintiffs settlement offer was made nor would defendant have any such information given it has only just answered plaintiffs complaint. Thus, defendant RMC Pacific Materials Inc. has none of the information necessary to evaluate plaintiffs offer. Moreover, plaintiff has made his offer knowing full-well that defendant RMC Pacific Materials Inc. has none of the necessary information to evaluate plaintiffs offer. Therefore, plaintiff has not made the present offer in good faith under section 998. -2- RMC PACIFIC MATERIALS, INC.’S OBJECTIONS TO PLAINTIFFS’ OFFER TO COMPROMISE PURSUANT TOC.C.P. § 998LLP KNOX RICKSEN 27 28 Based on the foregoing, defendant RMC Pacific Materials Inc. hereby objects to plaintiff's Offer to Compromise pursuant to California Code of Civil Procedure section 998 served on May 13, 2010, in the above-captioned matter. Said offer is premature, not made in good faith, and therefore invalid pursuant to California Code of Civil Procedure section 998, Without waiving the foregoing objections, defendant RMC Pacific Material, Inc. reserves its right to evaluate plaintiff's offer. Dated: August 24, 2010 KNOX RICKSEN LLP By: _/S/ Reid M. Miller Thomas E. Fraysse Kenneth J. McCarthy David F, Zucca Reid M. Miller Attorneys for Defendant RMC PACIFIC MATERIALS, INC. -3- RMC PACIFIC MATERIALS, INC.’S OBJECTIONS TO PLAINTIFFS’ OFFER TO COMPROMISE PURSUANT TOC.C.P. § 998LLP KNOX RICKSEN 27 28 Re: Hagen v. Asbestos Defendants (BP) San Francisco Superior Court Ne. 275582 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION 1, Nicholas J. Bertolino, the undersigned, declare: that I am and was at the time of service of the documents herein referred to, over the age of 18 years, and not a party to the action: and | am employed in the County of Alameda, California. My business address is 1300 Clay Street, Suite 500, Oakland, California 94612-1427, On the date executed below, ! electronically served the document(s) via LexisNexis File & Serve described as: RMC PACIFIC MATERIALS, INC,’S OBJECTIONS TO PLAINTIFFS’ OFFER TO COMPROMISE PURSUANT TO C.C.P. § 998 on the recipients designated on the Transaction Receipt located on the LexisNexis File & Serve website. I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct and was executed on August 24, 2010 at Oakland, California. /s/ Nicholas J. Bertolino Nicholas J. Bertolino -4- RMC PACIFIC MATERIALS, INC.’S OBJECTIONS TO PLAINTIFFS’ OFFER TO COMPROMISE PURSUANT TOC.C.P. § 998